1400 Independence Avenue, SW 1849 C Street, NW Washington, D.C Washington, D.C

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1 November 4, 2014 Via Web and Certified U.S. Mail Return Receipt Requested Tom Vilsack, Secretary Sally Jewell, Secretary U.S. Department of Agriculture U.S. Department of the Interior 1400 Independence Avenue, SW 1849 C Street, NW Washington, D.C Washington, D.C Thomas Tidwell, Chief Cal Joyner, Regional Forester USDA Forest Service USDA Forest Service 1400 Independence Ave., SW 333 Broadway Blvd., SE Washington, D.C Albuquerque, NM Re: Notice of Intent to Sue for Violations of the Endangered Species Act The U.S. Forest Service ( USFS ) is hereby notified that the Center for Biological Diversity ( Center ) intends to file civil action, pursuant to the citizen suit provision of the Endangered Species Act ( ESA ), 16 U.S.C. 1540(g), challenging ongoing violations of Sections 7 and 9 of the ESA, 16 U.S.C and 1538, resulting from: (1) failure to insure that land management actions are not likely to jeopardize the continued existence of the northern Mexican gartersnake (Thamnophis eques megalops) and the narrow headed gartersnake (T. rufipunctatus) (collectively, the species ); (2) failure to consult with the U.S. Fish and Wildlife Service ( FWS ) regarding land management actions that may affect the species; (3) continued implementation of land management actions that may affect the species without required consultation; (4) continued implementation of land management actions that irreversibly or irretrievably commit resources and/or may foreclose the formulation or implementation of reasonable and prudent alternatives prior to completing required consultations regarding the species; and (5) ongoing or foreseeable unauthorized take of the species. These violations arise out of the USFS s ongoing failure to address impacts to the two listed snake species from its planning and land management, allotment management, and grazing, vegetation, and soil management actions on six National Forests, including but not limited to those set out in detail in Tables 1-2 infra. Because to date there has been no legally-required consultation with the FWS regarding the effects of USFS actions on the continued existence of the two listed species, USFS is in continuing violation of 16 U.S.C. 1536, and must immediately initiate and/or reinitiate formal consultation with FWS to insure the survival of the two species. Notice of Intent to Sue Under the Endangered Species Act 1

2 Noticing party Center for Biological Diversity P.O. Box 710 Tucson, AZ Tel: (office) Tel: (cell) ESA requirements Section 7 of the ESA requires federal agencies, including the USFS, in consultation with the FWS, to insure that any action authorized, funded, or carried out by such agency... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of the listed species. 16 U.S.C. 1536(a)(2). Action is broadly defined to include all activities or programs of any kind authorized, funded or carried out by federal agencies, including but not limited to actions directly or indirectly causing modifications to land, water or air. 50 C.F.R Agencies must consult with the FWS on the impacts of any federal action to listed species or their critical habitat. 16 U.S.C. 1536(a)(2); 50 C.F.R This consultation process has four basic steps. First, an agency must inquire of the FWS whether any threatened or endangered species may be present in the area of an action. 16 U.S.C. 1536(c)(1). If the answer is yes, the agency shall prepare a biological assessment ( BA ) to determine whether any listed species is likely to be affected by the action. Id.; 50 C.F.R Third, if the BA determines that the action may affect a threatened or endangered species, the agency must initiate a process of formal consultation with the FWS. 16 U.S.C. 1536(b); 50 C.F.R ; also see 51 Fed. Reg. 19,926, 19,949 (June 3, 1986) ( may affect includes [a]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character ). Fourth, following this formal consultation, the Service issues a biological opinion ( BO ) summarizing its findings and determining whether the proposed action is likely to jeopardize the continued existence of the species and/or result in adverse modification of designated critical habitat. 50 C.F.R (h). If the FWS finds the action likely to jeopardize the continued existence of the listed speices, the BO must suggest reasonable and prudent alternative that could be taken by the action agency to avoid such jeopardy. 16 U.S.C. 1536(b)(3)(A). Following the issuance of a biological opinion, the Federal agency shall determine whether and in what manner to proceed with the action in light of its section 7 obligations and the biological opinion. 50 C.F.R (a). Following initiation of consultation with the FWS, federal agencies are prohibited from making irreversible or irretrievable commitments of resources that may preclude reasonable and prudent alternatives for the conservation of threatened or endanagered species. 16 U.S.C. 1536(d). That prohibition is in force during the consultation process and continues until the requirements of section 7(a)(2) are satisfied. 50 C.F.R Notice of Intent to Sue Under the Endangered Species Act 2

3 Finally, Section 9 of the ESA prohibits unauthorized take of threatened or endangered species. 16 U.S.C. 1538(a)(1); 1533(d); 50 C.F.R Take is defined broadly to include all manner of harm or harassment to protected species, including both direct injury or mortality, and also acts and omissions which disrupt or impair significant behavioral patterns. 16 U.S.C. 1532(19); 50 C.F.R Actions affecting the species The northern Mexican gartersnake and narrow headed gartersnake are vertebrate species that were listed by the FWS as threatened under the ESA, 16 U.S.C. 1533, on July 8, The listing decision found that 24 out of 29 known populations of northern Mexican gartersnake and 31 out of 41 known populations of narrow headed gartersnake are likely not viable and may exist at low population densities that could be threatened with extirpation or may already be extirpated. 79 Fed. Reg. at 38,678, 38,681-83, 38, Numerous negative effects on the two species, their prey base, and vegetation cover in their riparian habitat occur as a result of livestock grazing: Effects from historical or unmanaged grazing include: (1) Declines in the structural richness of the vegetative community; (2) losses or reductions of the prey base; (3) increased aridity of habitat; (4) loss of thermal cover and protection from predators; (5) a rise in water temperatures to levels lethal to larval stages of amphibian and fish development; and (6) desertification (Szaro et al. 1985, p. 362; Schulz and Leininger 1990, p. 295; Schlesinger et al. 1990, p. 1043; Belsky et al. 1999, pp. 8 11; Zwartjes et al. 2008, pp ). Id. at 38,715. Northern Mexican and narrow headed gartersnakes suffer both direct mortality and loss of essential habitat and prey base due to livestock grazing in riparian areas: Specifically, results indicated that snake abundance and biomass were significantly higher in ungrazed habitat, with a five-fold difference in number of snakes captured, despite the difficulty of making observations in areas of increased habitat complexity (Szaro et al. 1985, p. 360). Szaro et al. (1985, p. 362) also noted the importance of riparian vegetation for the maintenance of an adequate prey base and as cover in thermoregulation and predation avoidance behaviors, as well as for foraging success. Direct fatalities of amphibian species, in all life stages, from being trampled by livestock has been documented (Bartelt 1998, p. 96; Ross et al. 1999, p. 163). Gartersnakes may, on occasion, be trampled by livestock. A black-necked gartersnake (Thamnophis cyrtopsis cyrtopsis) had apparently been killed by livestock trampling along the shore of a stock tank in the Apache Sitgreaves National Forest, within an actively grazed allotment (Chapman 2005). Id. The USFS approved and is currently implementing numerous land management actions on the six specified Forests that may affect these species. In particular, livestock grazing on each of 1 See 79 Fed. Reg. 38,678 (July 8, 2014). Notice of Intent to Sue Under the Endangered Species Act 3

4 the individual allotments shown in Tables 1 and 2 below is a primary threat to the continued existence of the species because it occurs within, adjacent to, and/or immediately upstream of riparian habitats that are presumed by the FWS to be occupied by the species at the time of listing Northern Mexican gartersnake The northern Mexican gartersnake is a riparian obligate species associated with three primary habitats: source area ponds and ciénegas, lowland river riparian forests and woodlands, and upland stream gallery forests. See 79 Fed. Reg. 38,678 (July 8, 2014). Habitat exists in shallow waters, banks and riparian vegetation of large river riparian woodlands and forests. Id. at 38,679. Artificial stock tanks also may be vital to the short-term conservation and recovery of the species. Id. at 38,715. The snake requires these elements of habitat: permanent water, vegetative cover and prey base. When vegetative cover is eliminated from otherwise suitable habitat, the animal is vulnerable to local extirpation. Loss of vegetative cover from livestock grazing in a single season can permanently eliminate snakes from that locality. Small, isolated populations are especially vulnerable to livestock grazing. Id. at 38, Prey of the northern Mexican gartersnake includes native amphibians and fishes whose populations continue to decline throughout the reptile s range. Declines in prey base have led to subsequent declines in the distribution and density of gartersnake populations. Id. at 38,715. Livestock grazing is documented as a suspected contributing factor in gartersnake declines in subbasins including the Verde, Salt, Agua Fria, San Pedro, Gila, and Santa Cruz. Id. Livestock grazing threatens the existence of gartersnake populations not only through loss of vegetative cover and prey base, but also through the spread of harmful nonnative species. Id. Table 1 below displays approved and ongoing USFS land management actions that may affect the northern Mexican gartersnake. 2. Narrow headed gartersnake The narrow headed gartersnake is strongly associated with flowing water in perennial streams and associated riparian and upland habitats. 79 Fed. Reg. 38,678 (July 8, 2014). Narrow headed gartersnake requires the following elements of habitat: permanent water, vegetative cover and prey base. Id. at 38, The snake is vulnerable to local extirpation when vegetative cover is eliminated from otherwise suitable habitat. Loss of vegetative cover from livestock grazing in a single season can permanently eliminate snakes from that locality. Small, isolated populations are especially vulnerable to livestock grazing. Id. at 38, Prey of the narrow headed gartersnake primarily includes native fishes whose populations continue to decline throughout the reptile s range. Declines in prey base have led to subsequent declines in the distribution and density of gartersnake populations. Id. Livestock grazing is documented as a suspected contributing factor in gartersnake declines in subbasins including the Verde, Salt, Agua Fria, San Pedro, Gila, and Santa Cruz. Id. Livestock grazing threatens the existence of gartersnake populations not only through loss of vegetative cover and prey base, but also through the spread of harmful nonnative species. Id. The FWS determined that the narrow headed 2 The Center developed Tables 1 and 2 by overlaying spatial data obtained from the FWS Critical Habitat Portal ( with data obtained from the USFS showing allotment locations. The map is available upon written request. Notice of Intent to Sue Under the Endangered Species Act 4

5 gartersnake may persist at up to 36 localities. Id. at 38, Table 2 below displays approved and ongoing USFS land management actions that may affect the narrow headed gartersnake. Violations of ESA The USFS has approved and is currently implementing actions in the livestock grazing allotments shown in Tables 1 and 2, respectively, any or all of which may affect the species without insuring that the actions will not jeopardize continued existence of the species in occupied habitats. 3 To date, according to the best information available to the Center, the USFS has not consulted with the FWS regarding effects to the species that may result from actions listed in Tables 1 or 2, in violation of the ESA. 16 U.S.C. 1536(a)(2); also see Center for Biological Diversity v. Bureau of Land Management, 422 F.Supp. 2d. 1115, 1142 (N.D. Cal. 2006) ( Section 7 of the ESA imposes an affirmative duty on a federal agency to ensure that any action it carries out will not jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat ). The USFS has the responsibility under the ESA to certify that its actions will not jeopardize threatened or endangered species through consultation with the FWS. An agency cannot abrogate its responsibility to ensure that its actions will not jeopardize a listed species Resources Limited, Inc. v. Robertson, 35 F.3d 1300, 1304 (9th Cir. 1994), quoting Pyramid Lake Paiute Tribe v. United States Dep t of Navy, 898 F.2d 1410, 1414 (9th Cir. 1990). When a new species, such as the two gartersnakes, is listed, ESA 7 and FWS regulations require reinitiation of formal consultation where, as in the case of national forest land and allotment management, federal agency involvement or control over the action is retained and/or authorized. 50 C.F.R Continued implementation of the actions listed in Tables 1 and 2, respectively, may affect the species without required consultation, in violation of the ESA. Id. By its ongoing failure to comply with the procedures required by Section 7 of the ESA for the actions listed in Tables 1 and 2, the Forest Service is failing to insure that these authorized actions and activities will not jeopardize the continued existence of the species. Id. Continued implementation of the actions listed in Tables 1 and 2, even after consultation is initiated, may violate Section 7(d) of the ESA by making irreversible and irretrievable commitments of resources that may foreclose consideration of reasonable and prudent alternatives. 16 U.S.C. 1536(b), (d). Implementation of the actions listed in Tables 1 and 2 also may cause unauthorized take of the species, in violation of the ESA. 16 U.S.C On July 10, 2013, the FWS published a proposed rule to designate critical habitat for each of the species at locations considered to be occupied based on the best available scientific information. 78 Fed. Reg. 41,550, 41,556 ( Critical habitat for both gartersnake species is being proposed in areas considered currently occupied ). Notice of Intent to Sue Under the Endangered Species Act 5

6 Table 1. Actions that may affect northern Mexican gartersnake. Forest Allotment Forest Allotment Apache Sitgreaves NF Beaver Creek Gila NF Little Rough Fish Creek Mangas/Silverdale Grandfather Mule Creek Harden Cienega Pleasanton PS Potholes Sprucedale Reno Redstone West Fork Tennessee Coconino NF Apache Maid Watson Mountain Fossil Creek XSX Hackberry Pivot Rock Prescott NF Antelope Hills Thirteen Mile Rock Brown Springs Walker Basin China Dam Windmill Copper Canyon Windmill West Dugas Coronado NF Carrizo Horseshoe Dark Canyon Jerome Duquesne Muldoon Fresnal Perkinsville Hayfield Sand Flat HQ Squaw Peak Jarillas Todd Lake V Bar Lone Mountain Verde Lyle Canyon West Bear/Del Rio A Draw Young Bender Tonto NF 7/K Blacktail Cedar Bench Campini Christopher Mountain Canelo Del Shay Chuney Diamond Butte Collins Canyon Ellinwood Crittenden Gisela Kunde Green Valley Lochiel H 4 O'Donnell Hardt Creek Papago Indian Gardens Post Canyon Red Creek San Rafael Sears Club/Chalk Mtn Santa Cruz Seventy Six Sawtelle Skeleton Ridge U D Soldier Camp Star Valley Tonto Basin Walnut Notice of Intent to Sue Under the Endangered Species Act 6

7 Table 2. Actions that may affect narrow headed gartersnake. Forest Allotment Forest Allotment Forest Allotment Apache Sitgreaves NF Alpine Apache Sitgreaves NF, cont. Wildbunch Gila NF, cont. Govina Baseline Horsesprings Williams Valley Harden Cienega Beaver Creek Coconino NF Apache Maid Harve Gulch Bobcat Johnson Beaver Creek Hermosa Bush Creek Buck Springs Holt Gulch Copperas Fossil Creek Indian Creek Cow Flat Hackberry Pivot Rock Jordan Mesa Coyote Whitmer Ike's Backbone Keller Canyon Double Circle Thirteen Mile Rock Kelly East Eagle Walker Basin Laney Fish Creek Windmill Leggett Fishhook Steeple Mesa Windmill West Little Rough Grandfather Gila NF Alexander Lower Plaza Harden Cienega Alma Luna Heber Apache Canyon Mangas/Silverdale Hickey Big Horn McCarty Long Tom Black Bob Negrito Yeguas Lower Campbell Blue Brock Canyon Pleasanton Mud Springs Canyon Creek Potholes PS Cedar Breaks Pueblo Creek Pigeon Citizen Reading Mountain Pleasant Valley Copper Creek Redstone Raspberry Corner Mountain Roberts Park Red Hill Cross V Sapillo San Francisco Deep Canyon South Fork Sandrock Diamond Bar Spar Canyon Sardine Devils Park T Bar Sprucedale Reno Dry Creek Taylor Creek Tule Eagle Peak XSX Turkey Creek East Apache Creek Watson Mountain Upper Cambell Blue Frisco Plaza West Sand Flat West Fork Gila River Whiterocks Notice of Intent to Sue Under the Endangered Species Act 7

8 Table 2, cont. Actions that may affect narrow headed gartersnake. Forest Allotment Forest Allotment Prescott NF Anetelope Hills Tonto NF, cont. Ellinwood Brown Springs Gisela China Dam Green Valley Copper Canyon H 4 Horseshoe Haigler Creek Jerome Hardt Creek Muldoon Haystack Butte Perkinsville Heber Reno Driveway Sand Flat Hicks Pike Peak Squaw Peak Indian Gardens Verde Marsh Creek West Bear/Del Rio O.W. Young Payson Tonto NF American Gulch Pine Bar X Poison Springs Bull Springs Pole Hollow Cedar Bench Red Creek Christopher Mountain Sedow Chrysotile Seventy Six Colcord Canyon Skeleton Ridge Cross V Soldier Camp Dagger Star Valley Del Shay Tonto Basin Diamond Butte Walnut Notice of Intent to Sue Under the Endangered Species Act 8

9 Conclusion The Center may take legal action 60 days following the date of this notice for the violations of the ESA described above, and may seek declaratory and injunctive relief as appropriate, as well as recovery of costs and expert and attorney fees. The Center has prepared this notice based on reasonably diligent investigation of relevant facts. If any of the foregoing is factually inaccurate, please notify me promptly to avoid unnecessary litigation. The U.S. Supreme Court stated that the purpose of the 60-day notice requirement of the ESA is to encourage settlement among parties and avoid litigation. In that spirit, I encourage you to contact me at the address or phone number shown below to resolve this matter. Sincerely, Jay Lininger, Senior Scientist jlininger@biologicaldiversity.org Tel: (cell) Notice of Intent to Sue Under the Endangered Species Act 9